Appeal from the Order of the Workmen's Compensation Appeal Board in case of James Cleary v. City of Scranton and Pennsylvania Manufacturers' Association Insurance Company, Insurance Carrier, No. A-65907.

COUNSEL

Robert H. Sayers, with him Van Deusen & Van Deusen, for appellants.

Edward M. Murphy, for appellee.

Judges Kramer, Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 10 Pa. Commw. Page 425]

The City of Scranton and its workmen's compensation insurance carrier have appealed from a decision and order of the Workmen's Compensation Appeal Board setting aside a final settlement receipt and awarding compensation for total disability to James Cleary, a former city policeman.

Mr. Cleary was seriously injured in the course of his employment on January 20, 1967 when, while directing traffic, he was struck down by a motor vehicle. He was treated at a hospital located in Scranton, where he remained for five weeks. The Chief of Police then put him to doing clerical work in the traffic and ticket office. In April 1967 he was readmitted to the Scranton hospital because of difficulty in swallowing and breathing.

[ 10 Pa. Commw. Page 426]

A huge hiatal hernia was discovered. Mr. Cleary's physicians recommended that he try to live with the hernia while receiving medical treatment and he went back to light duty. In April 1968 the hernia was causing him such difficulty in swallowing and in breathing that he was taken to a Philadelphia hospital and there operated upon. When released Mr. Cleary returned to light duty in the police department, with instructions from his superiors that if he had further difficulty he should stop work. On or about New Year's day in 1971, Mr. Cleary was in such discomfort that he was admitted to the Scranton hospital for five days and then transferred to a New York hospital, where on January 15, 1971 he again underwent surgery. He did not return to work after this operation because he had previously been told by the Chief of Police that when he returned he would be put on regular duty, which, because of his infirmities, he could not perform. The physician who treated Mr. Cleary testified that the hernia and his other injuries were caused by the accident, and that he was totally disabled at the time of the hearing in September 1971.

The city paid Mr. Cleary his full salary from the time of his injury in January 1967 until January 19, 1971. From January 1967 until May 1967 the city's insurer issued compensation checks payable to Mr. Cleary under a compensation agreement which had been executed shortly after the accident. On instructions of his superiors, Mr. Cleary endorsed these checks and delivered them to his superiors on the police force. On May 5, 1967, city employes delivered to Mr. Cleary compensation checks for endorsement and a final settlement receipt for his execution. The receipt recited that Mr. Cleary was able to return to work on May 1, 1967 "without any disability or loss of earning power due to injuries received in this accident." Mr. Cleary's signature appears on the receipt but he declares that he did not

[ 10 Pa. Commw. Page 427]

know what he was signing. It is noted that the huge hiatal hernia had been discovered before May 5, 1967 and that the claimant was disabled on that date.

The instant case was commenced by Mr. Cleary's filing, on April 14, 1971, a petition to reinstate the compensation agreement. In this, he averred that no final settlement receipt had been signed. The answer of the employer and its carrier averred the signing of the final settlement receipt on May 5, 1967 and defended on the ground that the claimant's petition had not been filed within two years from the date to which payments had been made as ...

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